Folk Psychology Wins the DAY! Daubert and the Challenge of False Confessions
In lieu of an abstract, here is a brief excerpt of the content:

Folk Psychology Wins the DAY!
Daubert and the Challenge of False Confessions
Abstract

Daubert v. Merrell Dow Pharmaceuticals, Inc., provides rules that are supposed to govern the admissibility of expert scientific testimony in federal court cases. It was designed to be applied across all scientific disciplines, regardless of legal context. However, there exists a strong tension between the Daubert standards and the practice of psychology and psychiatry. Moreover, judges seem to be biased against scientific testimony based on behavioral research, especially that regarding the likelihood of the risk factors and reasons underlying false confessions. I argue that the tenets of folk psychology are alive and well in the judicial system, to its detriment. The very functioning of our legal system depends on the veracity of confessions. That our folk ability to detect deception is demonstrably non-existent suggests that the legal process itself is fundamentally flawed. Daubert is being used to mask an incorrect and inappropriate perspective on human behavior.

Keywords

Law, behavioral sciences, expert testimony, deception, coercion, judicial bias

It has been more than 20 years since the U.S. Supreme Court's landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) on the admissibility of scientific expert witness testimony in legal proceedings. It is time, perhaps, to look back at the history of Daubert decisions to determine whether it and its progeny have lived up to their collective promises to keep bad science out of the courtroom, while allowing in good, especially where the mind and brain sciences are concerned.

In this essay, I argue that, although the decision in Daubert describes a general test for the admissibility of scientific evidence, it has not been applied consistently to data and conclusions drawn from the behavioral sciences. In particular, judges in the United States seem to be biased against scientific testimony regarding the likelihood of the risk factors and reasons underlying false confessions. I explore the reasons for this apparent bias, concluding that the tenets of 'folk psychology' are alive and well in the judicial system, and that the lure of folk competence outweighs and overcomes the challenges that scientifically guided behavioral investigations make to many of our foundational assumptions in the legal system. And it does so to the detriment of many defendants and to criminal justice system itself. [End Page 269]

A Quick History of Daubert and Its Progeny

Before Daubert, expert testimony was admissible in a trial if it were "generally accepted" in the relevant scientific discipline (Frye v. U.S. 1923). Although there have been only a few "Frye" challenges to expert testimony, over the years, some problems with the standard did become clear. What does "general acceptability" mean, for example? Other than noting that it required a "substantial majority" of the discipline (which was left undefined), Frye does not say. Perhaps worse, it leaves open the possibility that work that had not yet gained "general acceptability" but was nonetheless well-validated would be denied entrance into court proceedings. In U.S. v. Hinckley, for example, the judge excluded a proffer of expert testimony about abnormalities in John Hinckley's brain because such neurological findings had not yet received "general acceptability" based on the Frye standards (1982).

The Federal Rules of Evidence Sections 702 and 703 (1975) do discuss expert testimony, stating that when

scientific, technical or other specialized knowledge would be of assistance to the trier of fact and out of the ken (knowledge base) of the ordinary layperson (i.e., it would be value-added testimony), an expert qualified by knowledge, skill, education, experience, and training could testify in the form of an opinion, provided that the opinion was based on material 'reasonably relied on' by other members of the same profession.

However, these sections do not articulate what "reasonably relied on by other members of the same profession" means, and it was this lacuna that laid the groundwork for Daubert in 1993.

The U.S. Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., provided rules to govern the admissibility of all expert scientific testimony in federal court cases. These rules were designed to keep testimony based...